Sometimes, a testator will purposefully exclude one or more of their heirs from their estate – but what happens if they do so accidentally?
Errors of omission in wills may be more common than most people realize, but the law doesn’t want to see anybody disinherited purely by mistake. This is where pretermitted heirship comes into play.
Pretermitted spouses and children have rights in California
A pretermitted heir is anyone who would normally have been entitled to inherit from a decedent’s estate but was – for whatever reason – not included in the decedent’s will or trust.
One common situation involves a spouse who dies before they updated their will to include their new partner. This can happen, for example, if a testator was tragically killed on the couple’s honeymoon. In those situations, California’s Probate Code permits the spouse to inherit one-half of the decedent’s community property, one-half of their quasi-community property and up to one-half of their separate property (or whatever the spouse would have been entitled to receive had the decedent died intestate).
Another common situation involves children who were conceived shortly before a testator’s death or children who were unknown to the testator before their death. It can also include situations where the testator adopted a child shortly before their death but neglected to update their will. In those situations, the law permits the child to claim a share of the deceased’s estate equal to whatever they would have received if there had been no will at all.
Issues involving pretermitted heirs can sometimes get complicated, especially if their inheritances threaten the inheritances of others. Seeking legal guidance early is the best way to protect your interests.
